Good morning, everyone. My name is Delphine Nakache. I am a law professor at the University of Ottawa, but you are right that I am teaching and researching in the Faculty of Social Sciences. But my background is a legal one.
As an outside consultant, I wrote a report for UNHCR in December 2011 on the human and financial costs of detaining asylum seekers in Canada. My presentation today will focus on the detention conditions of asylum seekers in provincial prisons. I will talk about that issue at length because very few studies have been conducted on it. I really wanted to highlight that aspect.
If Bill C-31 passes, the number of asylum seekers detained in provincial prisons will increase significantly. However, there are already a number of substantial issues related to the detention of asylum seekers in those institutions. Therefore, it is of the utmost importance that those issues be resolved before the situation worsens.
Given that the highest increase in immigration detention is expected in British Columbia, the most likely destination for boat arrivals, my presentation today focuses on conditions of detention for asylum seekers in B.C. But this situation is broadly similar across Canada.
What is the overall situation in Canada?
During the past three years, according to the CBSA, the use of provincial prisons for immigration purposes has increased for all categories of immigration detainees, reaching over 36% of all immigration detainees.
Asylum seekers are directly affected by that increase. From 2005 to 2009, 23% of refugees were detained in provincial prisons, on average. From 2009 to 2010, that figure was 29%. So there was an increase in the number of asylum seekers detained in provincial prisons. It is important to point out that the vast majority of those people were not detained because they posed a threat to security. They were detained only for immigration reasons. Generally speaking, this means that almost one asylum seeker out of three who is detained under the Immigration and Refugee Protection Act is locked up in a prison-like institution—in other words, a municipal or provincial prison. In most cases, we are talking about a provincial prison.
How can we explain those figures? It's fairly simple. They are due to the fact that Canada has only two CBSA immigration centres, also referred to as immigration holding centres. There are actually three such institutions, but two of them are used for detaining foreign nationals for periods of over 72 hours. There is one centre for Greater Montreal and another one for the Greater Toronto Area. Therefore, elsewhere in Canada, asylum seekers are detained in municipal or provincial prisons. Provincial prisons are also used across Canada to detain low-risk individuals with mental or behavioural disorders.
What is the situation in British Columbia, specifically?
In British Columbia, detained asylum seekers are brought to the B.C. immigration holding centre for the first 72 hours only, and then are automatically transferred to provincial prisons.
Although there are medium security prisons in British Columbia, all asylum seekers are detained in maximum security prisons. The reasons for that are unclear.
B.C. Corrections also says that it wants to treat all detainees the same way so as to avoid any discrimination between inmates. Thus, B.C. guards are not informed of the immigration status of detainees
and asylum seekers are submitted, just as all other common prisoners, to all the institutional rules. This may mean that they have to wear prison uniforms and that their freedom of movement is extremely restricted.
The lack of special consideration for asylum seekers is problematic.
For instance, unlike asylum seekers detained in CBSA centres, imprisoned individuals have no Internet access. Their telephone calls are extremely restricted. Those calls can be made only when asylum seekers are in the common room—so at very specific times of day. In addition, since the calls are monitored for reasons that are understandable in a criminal context, they can be interrupted at any time.
In addition, local calls are free for asylum seekers detained in CBSA immigration holding centres, or IHCs, but individuals detained in prisons have to pay for them. Inmates must use a calling card issued by the penitentiary to make international calls. However, according to my research experience and what I witnessed in British Columbia, the calling cards do not work for all the countries asylum seekers come from.
These are concrete issues, but under those conditions, you can understand that it is very difficult for asylum seekers to gather the documents they need to claim refugee status, especially since those claimants rarely receive outside help.
Regarding correctional centres, aside from the Red Cross that visits those centres at very irregular intervals, no NGOs are allowed to visit asylum seekers in prison. In addition, it is very difficult for those asylum seekers to seek legal advice while in detention. That is much more difficult than for those detained in CBSA immigration holding centres.
The situation contrasts starkly with the situation in other industrialized countries.
The problematic situation in provincial prisons is exacerbated by a legal uncertainty surrounding the sharing of jurisdiction between federal and provincial authorities. This is actually a context where, under the Immigration and Refugee Protection Act, the CBSA is the federal entity with the authority to detain asylum seekers. However, under the Constitution Act, 1867, provinces are responsible for the care, custody and control of asylum seekers detained in provincial prisons. This means that, although the CBSA has the decision-making authority regarding the detention of asylum seekers, that agency has no control over the way provincial correctional services manage their prisons.
As noted in my report, one CBSA respondent mentioned that “the situation today reflects a highly ineffective use of taxpayers' dollars, since CBSA is paying so much for the correctional facilities but has no 'control' over what provincial prisons are doing.”
At the end of my presentation, I will talk about the financial cost of detention.
Strict punitive rules in prisons were established with a specific goal. That goal is simple: to establish a framework for common prisoners' detention conditions. So there is no apparent reason for those rules to apply to asylum seekers detained under immigration law and not criminal law. That is why international law clearly stipulates that asylum seekers should be detained in conditions appropriate to their status and not as individuals deemed or recognized as guilty of an offence.
In recognition of this issue, a 2009 report by a senior official from the U.S. Department of Homeland Security acknowledged, for example, that the detentions of immigration detainees in U.S. correctional facilities “impose more restrictions and carry more costs than are necessary to effectively manage the majority of the detained population”.
The costs are clearly human rights costs. To name a few, asylum seekers in prisons are subject to unnecessary and disproportionate restrictions of their liberty, which impedes their ability to seek international protection. There are also concerns about the safety of detained asylum seekers in B.C. prisons, most of whom have likely never experienced a prison-like environment before and are left to co-mingle with the regular population in prison. In addition, dispersing asylum seekers in high-security prisons, instead of medium-security prisons, is a disproportionate management of the asylum seeker population given the very low security risk that asylum seekers present.
In addition, there are some financial costs involved. Of course, it is difficult to obtain statistics on the financial costs of detention. On that point, I would like to refer you to a 2010 report the auditor general produced on detention in immigration.